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The sponsor of a House bill that would hold websites liable for sex-trafficking-related
content is arguing that her measure is better than a related Senate bill that lawmakers
there have changed to win some tech sector support.

“We want to make sure we have a piece of legislation that’s signed into law that’s
going to have real teeth behind it,” Missouri Republican Rep. Ann Wagner told Bloomberg
Law after testifying at a House subcommittee hearing examining efforts to combat online
sex trafficking.

Wagner’s stance signals that it may not be easy for the two chambers to agree on a
common approach on the legislation, which is being closely watched by social media
giants such as Facebook Inc., Twitter Inc., and other tech companies.

Wagner’s bill (
H.R. 1865), would hold websites liable for third-party content if they showed reckless disregard
that the content would further sex trafficking. The legal standard in her bill is
stronger than the Senate measure (
S. 1693) by Sen. Rob Portman (R-Ohio), which would hold websites liable for knowingly assisting
in sex trafficking, she said.

The knowingly standard in the Senate bill—while “a step in the right direction”—would
likely fail to hold bad actors accountable because evidence would be hard to collect,
Wagner said during the House Energy and Commerce Communications and Technology Subcommittee
hearing.

Both bills would amend Section 230 of the Communications Decency Act, a 21-year-old
federal law that grants websites broad immunity for content posted by users. The law
has consistently shielded advertising site Backpage.com LLC from claims that it enables
sex trafficking through its classified ads.

“We’re pleased with the significant progress being made in the Senate and hope to
see a quickening pace of action in the House,” Portman spokesman Kevin Smith told
Bloomberg Law via email.

Wagner told the House subcommittee that while it may be possible to prove Backpage
knowingly assisted in a sex trafficking violation, “it is not possible to gather this
level of evidence for the hundreds of other websites” that profit from this crime.

“Prosecutors across America have told me that any legislation that depends exclusively
on the ‘knowingly’ mens rea standard to hold websites accountable will merely be a
Washington, D.C. ‘feel good’ exercise,” she said.

Lawmakers made the change to address concerns from some tech companies that they could
be held liable for merely knowing that sex trafficking is present on their sites.
The Internet Association, a trade group that represents Facebook and Alphabet Inc.'s
Google, supports the change. But other tech groups still oppose the legislation.

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